§ 122. Silence under accusations of guilt.-The silence of the accused as regards statements in his hearing which implicate him directly or indirectly may be proved with the statements," and from his acquiescence the jury may infer that the statements are true and that they prove his guilt. Silence is assent as well as consent, and may, where a direct and specific accusation of crime is made, be regarded under some circumstances as a quasi-confession. An innocent person will at once naturally and emphatically repel an accusation of crime, as a matter of self-preservation and self-defense, and as a precaution against prejudicing himself. A person's silence, therefore, particularly when it is persistent, will justify an inference that he is not innocent. The accused may have been silent when he was interrogated or accused before a magistrate, a coroner or police officers, which is termed judicial interrogation, or he may have been silent extra-judicially, i. e., when accused or questioned by private persons before or after his arrest. For silence to be equivalent to a confession, it must be shown that the accused heard and understand the specific charge against him,100 and that he heard it under circumstances not only per "State v. Suggs, 89 N. Car. 527; Smith v. State, 147 Ala. 692, 40 So. 959; Rains v. Commonwealth (Ky.), 92 S. W. 276, 29 Ky. L. 66; Davis v. State (Tex. 1908), 114 S. W. 366; State v. Worthen, 124 Iowa 408, 100 N. W. 330; O'Hearn v. State, 79 Neb. 513, 113 N. W. 130; Musfelt v. State, 64 Neb. 445, 90 N. W. 237; Watt v. People, 126 Ill. 9, 18 N. E. 340, 1 L. R. A. 403; Gilman v. People, 178 Ill. 19, 52 N. E. 967; Commonwealth v. Dewhirst, 190 Mass. 293, 76 N. E. 1052; Joiner v. State, 119 Ga. 315, 46 S. E. 412; State v. Johnson, 73 N. J. L. 199, 63 Atl. 12; Lyon v. Commonwealth (Ky.), 96 S. W. 857, 29 Ky. L. 1020; People v. Swaile (Cal. App., 1909), 107 Pac. 134. 100 Brown v. Commonwealth, 86 Va. 935, 11 S. E. 799; Commonwealth v. Brailey, 134 Mass. 527; Bookser v. State, 26 Tex. App. 593, 10 S. W. 219; Franklin v. State, 69 Ga. 36, 47 Am. 748; State v. Howard, 102 Mo. 142, 14 S. W. 937; State v. Pratt, 20 Iowa 267; Commonwealth v. Harvey, I Gray (Mass.) 487; Long v. State, 13 Tex. App. 211; Martin v. State, 39 Ala. 523; Roquemore v. State, 50 Tex. Cr. App. 542, 99 S. W. 547; State v. Quirk, 101 Minn. 334, 112 N. W. 409; Irving v. State (Miss. 1908). 47 So. 518; State v. Major, 70 S. Car. 387, 50 S. E. 13; Jones v. State (Ala. 1908), 47 So. 100; People v. Long, 7 Cal. App. 27, 93 Pac. 387; People v. McCrea, 32 Cal. 98; White v. State (Tex. 1905), 85 S. W. 1140: State v. Baruth, 47 Wash. 283, 91 Pac. 977; Finch v. Commonwealth (Ky.) 92 S. W. 940, 29 Ky. L. 187. mitting but calling on him for a denial,1 taking into consideration all the circumstances and the persons who were present." 1 Ettinger v. Commonwealth, 98 Pa. St. 338; Surber v. State, 99 Ind. 71, 73; Conway v. State, 118 Ind. 482, 485, 21 N. E. 285; Jones v. State, 107 Ala. 93, 18 So. 237; State v. Good, 132 Mo. 114, 33 S. W. 790; Moore v. State, 96 Tenn. 209, 33 S. W. 1046; People v. Young, 108 Cal. 8, 41 Pac. 281; Williford v. State, 36 Tex. Cr. App. 414, 37 S. W. 761; State v. Magoon, 68 Vt. 289, 35 Atl. 310; Loggins v. State, 8 Tex. App. 434; Commonwealth v. Brown, 121 Mass. 69; Lawson v. State, 20 Ala. 65, 56 Am. Dec. 182; Brister v. State, 26 Ala. 107, 116; Slattery v. People, 76 Ill. 217; Watt v. People, 126 Ill. 9. 18 N. E. 340, 1 L. R. A. 403; Williams v. State, 42 Ark. 35; Ford v. State, 34 Ark. 649; State v. Mullins, 101 Mo. 514, 14 S. W. 625; State v. Smith, 30 La. Ann. 457; State v. Carroll, 30 S. Car. 85, 8 S. E. 433, 14 Am. St. 883; State v. Hasty, 121 Iowa 507, 96 N. W. 1115; Raymond v. State, 154 Ala. 1, 45 So. 895; O'Hearn v. State, 79 Neb. 513, 113 N. W. 130; Graham v. State, 118 Ga. 807, 45 S. E. 616; State v. Richardson, 194 Mo. 326, 92 S. W. 649; State v. Walker, 78 Mo. 380; People v. McCue, 87 App. Div. (N. Y.) 72, 83 N. Y. S. 1088; Lumpkin v. State, 125 Ga. 24, 53 S. E. 810; Jones v. State, 2 Ga. App. 433, 58 S. E. 559; Smith v. State, 52 Tex. Cr. App. 344, 106 S. W. 1161; People v. Hossler, 135 Mich. 384, 97 N. W. 754, 10 Det. Leg. N. 798; State v. Taylor, 70 Vt. I, 39 Atl. 447, 67 Am. St. 648, 42 L. R. A. 673n. If a confession is inadmissible because the accused was not cautioned, or because he was under duress, his silence ought in like circumstances to be refused. Fulcher v. State, 28 Tex. App. 465, 473, 13 S. W. 750; Nolen v. State, 14 Tex. App. 474, 46 Am. 247n. 2 Wharton thus broadly and liberally states this rule in Cr. Ev., 8th ed., § 679. “If A., when in B.'s presence and hearing, makes statements which B. listens to in silence, interposing no objection, A.'s statement may be evidence against B., whenever B.'s silence is of such a nature as to lead to the inference of assent." In Commonwealth v. Kenney, 12 Met. (Mass.) 235, 46 Am. Dec. 672, the court says: "The admissibility of silence depends on whether he hears and understands the 'statement and comprehends its meaning; whether the truth of the facts embraced in this statement is within his own knowledge; whether he is in such a situation that he is at liberty to make a reply. * * * If made in the course of any judicial hearing, he could not interfere and deny the statement; it would be to charge the witness with perjury and inconsistent with decorum and the rules of law * * * or if he is restrained by fear, or by doubts of his rights; by a belief that his security will be promoted by his silence." See also, Kelley v. People, 55 N. Y. 565, 574, 14 Am. 342. It is for the court to determine whether the proceedings are judicial. People v. Willett, 92 N. Y. 29, 33, I N. Y. Cr. 355. See also State v. Baruth, 47 Wash. 283, 91 Pac. 977; Hanna v. State, 46 Tex. Cr. App. 5, 79 S. W. 544; Maloney v. State (Ark., 1909), 121 S. W. 728. And if it be proved that the accused, when he heard the incriminating statement, positively denied it, the statement cannot be proved.3 § 123. Attendant circumstances explaining motives and reasons of silence. The silence of the accused may spring from such a variety of motives, some of which may be consistent with innocence, that silence alone is very slight evidence of guilt; and, aside from the inferences which may arise from the attendant circumstances, should be received with caution as proof of guilt.* The accused may always show the attending circumstances of his silence, and, if he shall show, to the satisfaction of the jury, that his silence was caused by reasons or prompted by motives consistent with his innocence, the accusatory statements and his silence should be disregarded. Thus, he may show his silence was caused by threats; that the statements made did not implicate him; that he had or that he supposed he had no right to reply, as when the accusations were made in a judicial or quasijudicial proceeding, as a coroner's inquest. So he may prove that he had promised to be silent under accusations made at a family council;10 and generally that, under the circumstances, he may show that no oral reply would have been either natural, proper or expedient.1 3 8 11 People v. Turner, 1 Cal. App. 420, The refusal by defendant to testify at 82 Pac. 397. a preliminary examination cannot be proved against him. Broyles v. State, 47 Ind. 251, 253; State v. Smith, 30 La. Ann. 457; State v. Hale, 156 Mo. 102, 56 S. W. 881. Underhill on Ev., p. 112; People v. Manasse, 153 Cal. 10, 94 Pac. 92. Flanagin v. State, 25 Ark. 92. 6 Loggins v. State, 8 Tex. App. 434. Commonwealth V. Kenney, 12 Metc. (Mass.) 235, 46 Am. Dec. 672; Simmons v. State, 50 Tex. Cr. App. 527, 97 S. W. 1052. 8 Bell v. State, 93 Ga. 557, 19 S. E. 244; Kelley v. People, 55 N. Y. 565, 571, 14 Am. 342; Comstock v. State, 14 Neb. 205, 15 N. W. 355; Weaver v. State, 77 Ala. 26; People v. Hillhouse, 80 Mich. 580, 45 N. W. 484; State v. Mullins, 101 Mo. 514, 14 S. W. 625; Burrill on Cir. Ev., p. 482. The mental condition of the person who made the accusing statements which were not denied is very important. If the person making the incriminating statements was so intoxicated as not to realize what he was saying, they may be disregarded and the silence of the accused is not competent. If, on the other hand, the accused is intimidated by the conduct of the party making the statements, who was drunk and violent in his conduct, silence is not relevant.12 13 14 Upon the question whether the silence of the accused under accusations of crime made in his presence while he is under arrest or in custody, but which are not made in a judicial proceeding or investigation, where it would have been improper for him to speak, is admissible, the cases are inharmonious. Some cases hold that the mere fact of the accused being in custody or under arrest excludes any inference of acquiescence in others' statements from his silence, though he had the right and the opportunity to speak.' But it may be noted that it has never been expressly held that the fact that the accused is under arrest excludes evidence of his acts and conduct other than mere silence.1 On the other hand, where the accused was identified by the injured person or by any other witness in jail,15 or in a stationhouse immediately after his arrest,16 or on being brought before duress, and whether the statements in which case statements of deceased are made by such persons and under such circumstances as naturally call for a reply." Commonwealth V. Brailey, 134 Mass. 527, 530; Newman v. Commonwealth (Ky.), 88 S. W. 1089, 28 Ky. L. 81. 12 Jones v. State, 2 Ga. App. 433, 58 S. E. 559. 13 State v. Diskin, 34 La. Ann. 919, 921, 44 Am. 448; State v. Carter, 106 La. 407, 30 So. 895; State v. Estoup, 39 La. Ann. 906, 3 So. 124; Commonwealth v. Kenney, 12 Metc. (Mass.) 235, 46 Am. 672; Commonwealth v. McDermott, 123 Mass. 440, 25 Am. 120; Commonwealth v. Walker, 13 Allen (Mass.) 570; Gardner v. State (Tex. 1896), 34 S. W. 945; State v. Kelleher, 201 Mo. 614, 100 S. W. 470, in homicide were made in the presence and hearing of the accused. See also State v. Weaver, 57 Iowa 730, II N. W. 675; State v. Epstein, 25 R. I. 131, 55 Atl. 204; Hauger v. United States, 173 Fed. 54, 97 C. C. A. 372. a magistrate in his private office, after the preliminary examination, solely for identification," it was held that, as it would have been proper for him to deny the identification, his silence was admissible. The statements identifying a person under such circumstances, though made to a police officer and not addressed directly to the accused, so far concern the latter that they challenge him to assert his innocence, and his assertion of this fact would be both natural and proper.18 But it has been held that a statement by the accused made by him in reply to a question by a police officer if he had anything to say to a confession of an accomplice, that he would make his statement at the proper time, and, that he would stand trial and tell his story then, is not such acquiescence as to render the confession admissible against the accused.19 The silence of the accused is not competent unless it shall clearly appear that the witness called to prove the statement and the silence would have heard a response had any been made.20 The witness may be asked if he would have heard the defendant speak, if he had said anything.21 The mental or physical condition of the parties to the conversation is relevant to show whether the accused heard the statements. Deafness or an unconscious condition on the part of the accused when the statement is made may be shown. If the question whether the accused heard what was said is in issue, the jury may consider these facts in determining the value of the evidence of silence.22 Proof that the accused did not understand the language spoken by his accuser will exclude the statement and the silence of the accused as evidence. Statements made by the accuser of an incriminating character have been excluded though uttered in the presence of the accused where they were made through an interpreter.23 |